On Sept. 13 the Ninth Court of Appeals upheld an expert report submitted by medical-malpractice plaintiffs claiming a doctor left an open hole in their relative’s bowel, causing her to sustain fatal injuries.

Last May, Lam Pham, Lana Tran, Anna Bailey and Diep Pham filed suit against Dr. Jerome F. Schrapps and Southeast Texas Surgical Associates, claiming their wife and mother, Hanh Thi Ngo, was left with a hole in her bowel following an exploratory laparotomy on March 15, 2009.

Shortly after the suit was filed, the defendants objected to the plaintiffs’ expert report.

Under Chapter 74 of the Texas Civil Code, med-mal plaintiffs are required to submit expert reports.

The defendants argued that the amended report fails to adequately explain the standard of care and the causal connection between any alleged breach by Schrapps and Ngo’s death, court papers say.

However, Judge Bob Wortham, 58th District Court, found the report adequate, prompting the defendants to file an appeal on Feb. 10.

“The trial judge concluded the report was sufficient under the statute to allow the cause of action to proceed to discovery,” writes Justice David Gaultney in the Ninth Court’s opinion.

“Under the circumstances, we do not see an abuse of discretion in denying the motion to dismiss as to Dr. Schrapps. Because appellees seek to hold Southeast Texas Surgical Associates, P.A. liable solely on vicarious liability theories, the trial court did not abuse its discretion in denying the motion to dismiss as to Southeast Texas Surgical Associates. Appellants’ issues are overruled. The trial court’s order is affirmed."

Case background

Dr. Schrapps of Southeast Texas Surgical Associates performed the surgery to treat a small bowel obstruction and allowed Ngo to be discharged on March 20, 2009, the suit states.

Following the surgery, Ngo began experiencing skin problems and visited Dr. Schrapps’ office on April 1, 2009, to be treated for the issues, the suit states. Schrapps noted that when he shook her hand, she felt feverish, and he began instituting diagnostic tests on her, the complaint says. In addition, he resuscitated her with fluids, antibiotics and packed red blood cells, the plaintiffs claim.

“Her white blood cell count was markedly elevated at around 29,000, consistent with infection, and a CAT scan of the abdomen identified multiple abscesses and possible contrast in the abscess of the pelvis which would be suggestive of a contained perforation,” the suit states. “In sum, she had a hole in her bowel from Dr. Schrapps’ surgery.”

The suit says Schrapps attempted to rectify the problem on April 2, 2009, through a number of interventions, including by draining her abscess and by supplementing her nutritional needs through intravenous measures.

By the time Ngo left defendant Christus Hospital St. Elizabeth, she was alert and oriented, according to the complaint. She was transferred to a long-term care facility at defendant Christus Dubuis Hospital of Beaumont where she underwent physical and occupational therapies.

Nonetheless, Ngo’s condition worsened on April 15, 2009, when her heartbeat rose to between 102 and 140 beats per minute for five days straight, the plaintiffs claim. In addition, Ngo’s blood pressure began to drop and the color of her drainage began to change, according to the complaint.

Ngo returned to Christus St. Elizabeth where she was diagnosed with bleeding from an open wound and was placed on a ventilator, the suit states.

“On April 28, 2009, Mrs. Ngo was transferred to Methodist Hospital in Houston where she was diagnosed with septic shock and with multiple organ failure due to an inter-abdominal catastrophe,” the complaint says. “She remained nonresponsive and on a ventilator. In consultation with a palliative care nurse practitioner, the family decided to cease heroic measures and to let Mrs. Ngo pass away.”

The suit says Ngo died on May 5, 2009.

Because of Ngo’s hospitalization, the plaintiffs incurred medical costs, according to the complaint.

Before her death, Ngo suffered physical impairment, physical pain, mental anguish and disfigurement, the suit states.

The plaintiffs lost their wife’s and mother’s wages, services, consortium, companionship and society; suffered mental anguish; and incurred funeral and burial expenses because of her death, the complaint says.

In their suit, the plaintiffs blame Schrapps for causing Ngo’s death, saying he negligently perforated her bowel during the March procedure, failed to conduct proper follow-up and failed to timely transfer Ngo to Methodist Hospital.

They also say Christus Hospital St. Elizabeth in Beaumont was negligent by failing to appreciate Ngo’s diminishing condition, by failing to keep her physician informed of her deteriorating condition and by failing to sooner recommend her transfer to another hospital.

Joseph D. Terry and L. Lee Thweatt of Terry and Thweatt in Houston and Dal A. Fenton of The Law Office of Dal Fenton in Houston represent the plaintiffs.

Houston attorneys James R. Boston Jr. and Gary Sommer represent the defendants.

Appeals case No. 09-12-00080-CV

Trial case No. A190-100

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